Apple, Inc. v. Motorola, Inc. et al
Filing
156
Declaration of Samuel F. Ernst filed by Plaintiffs Apple, Inc., Next Software, Inc. re: 154 Motion to Stay (Attachments: # 1 Ex. 1, Part 1 - Agreement and Plan of Merger, # 2 Ex. 1, Part 2 - Agreement and Plan of Merger, # 3 Ex. 1, Part 3 - Agreement and Plan of Merger, # 4 Ex. 1, Part 4 - Agreement and Plan of Merger, # 5 Ex. 1, Part 5 - Agreement and Plan of Merger, # 6 Ex. 2, Supercharging Article, # 7 Ex. 3, M&A Call transcript, # 8 Ex. 4, Letter to Counsel, # 9 Ex. 5, Letter to Counsel, # 10 Ex. 6, Google's Motion to Dismiss, # 11 Ex. 7, Email to Counsel, # 12 Ex. 8, Email to Counsel) (Ernst, Samuel)
EXHIBIT 7
Page 1 of 6
Taylor, Ann M
From:
Anthony Pastor [anthonypastor@quinnemanuel.com]
Sent:
Thursday, September 08, 2011 6:23 PM
To:
Ernst, Samuel; David Perlson
Cc:
Moto-Apple-SDFL; Fram, Robert; Haskett, Christine; Eppich, Christopher K; Goldstein, Danielle;
Hawkinson, Matthew
Subject: RE: Apple/Motorola: Meet and Confer
SamWhat “enormous resources” will be spent between Friday and, say, next Tuesday?
Tony
From: Ernst, Samuel [mailto:sernst@cov.com]
Sent: Thursday, September 08, 2011 6:20 PM
To: David Perlson
Cc: Anthony Pastor; Moto-Apple-SDFL; Fram, Robert; Haskett, Christine; Eppich, Christopher K; Goldstein,
Danielle; Hawkinson, Matthew
Subject: RE: Apple/Motorola: Meet and Confer
David,
We discussed the length of the stay we are seeking on our call. We are seeking a stay until Motorola’s standing
deficiency is resolved, if it can be resolved.
You have all of the information regarding Motorola’s standing. And we have provided the case law.
So as I said, we do have an objection to waiting until next week. Our client is expending enormous resources
litigating toward final judgments that may be invalid if Motorola lacks standing.
Accordingly, we would ask that Motorola say whether it will agree to a stay, or we will commence our filing
asking for that relief tomorrow.
From: David Perlson [mailto:davidperlson@quinnemanuel.com]
Sent: Thursday, September 08, 2011 6:07 PM
To: Ernst, Samuel
Cc: Anthony Pastor; Moto-Apple-SDFL; Fram, Robert; Haskett, Christine; Eppich, Christopher K;
Goldstein, Danielle; Hawkinson, Matthew
Subject: Re: Apple/Motorola: Meet and Confer
Sam, while you may have not uttered the words "I agree" on the call you certainly left us all with
the impression that you had no objection to our suggested timing. And you definitely made no
unilateral demand to respond by noon pacific time as you did after the call.
You also still fail to provide any reason why the motion is so urgent that it must be filed
tomorrow such that apple could not wait until even Monday or Tuesday next week. While you
reference august 22 I think the first time you even mentioned any supposed standing issue or a
stay was yesterday, and it took two emails from Tony before you even identified that much
9/8/2011
Page 2 of 6
information after you first requested a meet and confer, suggesting no such urgency exists. Thus
we again request that apple engage in a good faith meet and confer as required.
In all events, one question we have is just what length of stay will apple be seeking. On our call
we didn't get a clear answer on that. In other words, until what occurs specifically will apple be
seeking to stay the case? We may likely have further questions after we have received an answer
to that question and after having had a chance to review the cases you have sent.
Thanks,
David
On Sep 8, 2011, at 4:45 PM, "Ernst, Samuel" wrote:
David,
I did not agree that we could wait until next week. You noted on the call that we said in
this meet and confer that we intend to file this week and I said yes.
Moreover, I detailed the factual basis for the motion and have sent you our case law
authority, as you requested.
And we have been requesting the Disclosure Letter in meet and confer since August 22.
Our client is prejudiced by expending resources litigating toward final judgments that may
be in question if Motorola lacks standing.
I am available to talk again at any time now or tomorrow, but we will need to file
tomorrow if Motorola does not have an answer.
-Sam
From: David Perlson [mailto:davidperlson@quinnemanuel.com]
Sent: Thursday, September 08, 2011 4:30 PM
To: Ernst, Samuel; Anthony Pastor
Cc: Moto-Apple-SDFL; Fram, Robert; Haskett, Christine; Eppich, Christopher K;
Goldstein, Danielle; Hawkinson, Matthew
Subject: RE: Apple/Motorola: Meet and Confer
Sam, on the call, we explicitly indicated that we could not provide an answer by
tomorrow as we would need to review your cited cases, discuss with the client,
etc . . ., and also given the looming immediate deadlines in our Wisconsin case.
We also indicated we may have follow up questions, including seeking more detail
on the stay that Apple will be seeking. Thus, we stated we would not be able to
respond with our position until next week. You raised no issue as to that timing on
the call.
Now in your email, you issue an ultimatum that we must respond by noon
9/8/2011
Page 3 of 6
tomorrow with our position or you will file. You do not indicate why Apple must
file tomorrow, rather than allowing us time to evaluate and investigate the issue
and get back to you next week as we said we would.
This is does not comply with the good faith meet and confer provided by Local Rule
7.1(a)(3). While we obviously cannot prevent Apple from filing its motion on this
unilateral timeline, it would be improper and we reserve the right to seek all
available relief for Apple’s failure to meet and confer as required.
David
From: Ernst, Samuel [mailto:sernst@cov.com]
Sent: Thursday, September 08, 2011 2:47 PM
To: Anthony Pastor
Cc: Moto-Apple-SDFL; Fram, Robert; Haskett, Christine; Eppich, Christopher K;
Goldstein, Danielle; Hawkinson, Matthew
Subject: RE: Apple/Motorola: Meet and Confer
Tony,
As you requested, attached are the case citations:
Sicom Systems Ltd. v. Agilent Techs., Inc., 427 F.3d 971 (Fed. Cir. 2005).
Intellectual Prop. Dev., Inc. v. TCI Cablevision of Cal., Inc., 248 F.3d 1333
(Fed. Cir. 2001)
Propat Int’l Corp. v. Rpost, 473 F.3d 1187 (Fed. Cir. 2007)
Zenith Elecs. Corp. v. Exzec Inc., 876 F.Supp. 175 (N.D. Ill. 1995)
Enhanced Security Research, LLC v. Cisco Systems, Inc., 2010 WL 2573953
(D. Del. June 25, 2010)
Abbott Labs. v. Diamedix Corp., 47 F.3d 1128 (Fed. Cir. 1995)
Morrow v. Microsoft, 499 F.3d 1332 (Fed. Cir. 2007)
Please let us know tomorrow by 12 noon whether or not Motorola will
oppose a stay; we will file our motion at that time.
Best regards,
Sam
From: Anthony Pastor [mailto:anthonypastor@quinnemanuel.com]
Sent: Thursday, September 08, 2011 1:46 PM
To: Ernst, Samuel
Cc: Moto-Apple-SDFL; Fram, Robert; Haskett, Christine; Eppich,
Christopher K; Goldstein, Danielle; Hawkinson, Matthew
Subject: Re: Apple/Motorola: Meet and Confer
9/8/2011
Page 4 of 6
Please use the following conference call number for our 2 pm call.
Call in Number:
Participant Code:
866-939-8416
9185269
Thanks,
Tony
On Sep 7, 2011, at 12:50 PM, "Ernst, Samuel"
wrote:
Tony,
Thursday at 2 p.m. will work for me. I will call you at your
office unless there is a different number you would prefer I
call.
Our motion relates to Motorola’s lack of standing to enforce
its patents in light of the rights in those patents it has ceded
to Google, and would ask for a stay of the litigation until that
situation is resolved.
Best,
Sam
From: Anthony Pastor
[mailto:anthonypastor@quinnemanuel.com]
Sent: Tuesday, September 06, 2011 7:43 PM
To: Ernst, Samuel
Cc: Moto-Apple-SDFL; Fram, Robert; Haskett,
Christine; Eppich, Christopher K; Goldstein, Danielle;
Hawkinson, Matthew
Subject: Re: Apple/Motorola: Meet and Confer
SamThank you, but your cryptic response still does
not provide me with any real information
concerning your "potential motion."
Can you please provide me with the exact nature
and factual basis of the motion so that I can be
prepared for the meet & confer?
Also, I will need to push the time for the meet &
confer to Thursday. 2 pm still works for me.
Thanks,
Tony
9/8/2011
Page 5 of 6
On Sep 6, 2011, at 5:30 PM, "Ernst, Samuel"
wrote:
The potential motion is related to the effect on
the litigation of Google’s acquisition of
Motorola and documents related to the
acquisition. May I call you at your office at 2
p.m. Pacific tomorrow?
From: Anthony Pastor
[mailto:anthonypastor@quinnemanuel.com]
Sent: Tuesday, September 06, 2011
5:18 PM
To: Ernst, Samuel
Cc: Moto-Apple-SDFL; Fram, Robert;
Haskett, Christine; Eppich, Christopher
K; Goldstein, Danielle; Hawkinson,
Matthew
Subject: Re: Apple/Motorola: Meet and
Confer
Yes. Please tell me the subject
matter of the motion.
How about 2 pm?
On Sep 6, 2011, at 5:13 PM, "Ernst,
Samuel" to
wrote:
Tony,
We are writing to inquire if you are
available for a pre-motion meet-andconfer pursuant to Local Rule 7.1(a)
(3) related to a motion we intend to
file in the Florida case this week. Do
you or anyone on your team have
availability for a call tomorrow?
Best,
Sam
Sam Ernst, Attorney, Covington
& Burling LLP
One Front Street
San Francisco, CA 94111-5356
Tel: 415.591.7026
Fax: 415.955.6526
9/8/2011
Page 6 of 6
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9/8/2011
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